James Murphy Davis v. United States

PER CURIAM: In this appeal, appellant challenges his conviction after a jury trial of one count of unlawful possession of marijuana, D.C. Code 1973, § 33-402. The sole issue we address is whether the trial court's instruction to the jury permitted the jury to find appellant guilty of possession of marijuana without a unanimous verdict as to which incident constituted unlawful possession. 1 We find the instruction to be erroneous and accordingly reverse the conviction. According to the government's evidence, one morning in August 1979 appellant sold one packet of marijuana for $5.00 to a taxicab driver driving along a street in Northwest Washington. Two plainclothes police officers in an unmarked police car, which had pulled up alongside the cab, witnessed this transaction and identified appellant as the seller. One of the plainclothes officers, Detective Gonzales, walked over toward appellant, who had moved approximately 15 feet from the cab, and arrested him. Detective McNamara, the other plainclothes officer, walked over to the cab driver and seized the packet of marijuana that had been thrown into the cab. The police searched appellant and recovered four five dollar bills from his pants pockets. After handcuffing appellant's hands behind his back, the police put him into the back seat of a police vehicle and drove him to police headquarters. Detective McNamara testified that he observed Officer Burton recover another envelope of marijuana from the crack of the rear seat of the police vehicle as appellant was alighting from the car at police headquarters.